Ostin and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 313
•8 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 313
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/308
GENERAL ADMINISTRATIVE DIVISION ) Re
Nicholas Ostin
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date8 April 2005
PlaceSydney
Decision The decision under review is affirmed. ..............................................
Professor GD Walker
Deputy President
CONTENTS
Page No
Catchwords 2
Summary 3
Background 4
Relevant Law and Policy 8
Issue 9
Evidence – introduction 9
Dr Kovdeeva’s evidence relating to the Rychtowski marriage 10
Mr Rychtowski’s evidence relating to the marriage 21
Evidence supporting Mr Rychtowski’s account 28
Evidence in relation to other alleged breaches 42
Evidence relevant to the exercise of the discretion 45
Application of the law and findings of fact 46
CATCHWORDS
IMMIGRATION – spouse visa – refusal of visa on character grounds – past and present general conduct – discretion that the tribunal may exercise where the visa applicant fails the character test – examination of the visa applicant’s immigration history including her first marriage in Australia and her appeal to the MRT – examination of the visa applicant’s stay in Australia including her marriage to Walter Rychtowski, remaining in Australian unlawfully and working without authority to do so – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant and visa applicant – held the visa applicant showed contempt and disregard for Australian law by entering into a contrived marriage with Walter Rychtowski to obtain an migration outcome, she remained in Australia as an unlawful non-citizen for 14 months and worked without lawful permission and she made a false and misleading statement in her present spouse visa application – found that there is a risk of recidivism, refusal of a visa would be likely to be noticed in the Australian Russian community and would have a deterrent effect, the community would expect a person with gross violations of the law to be refused a visa – found that whilst the marriage to the applicant is genuine and he will suffer if a visa is refused, community protection and expectations outweigh all other considerations, including the marriage to the applicant – decision of the respondent is affirmed.
Migration Act 1958 ss 499, 501, 501(6)(c)(ii)
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1894) 6 R 67
Dhillon and Another v Minister forImmigration, Local Government and Ethnic Affairs (1989) 86 ALR 651
Dhillon v Minister forImmigration, Local Government and Ethnic Affairs (1994) 48 FCR 107
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Jones v Dunkel (1959) 101 CLR 298
ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
8 April 2005 Professor GD Walker, Deputy President
Summary
1. The visa applicant, Tamara Kovdeeva, applied for a subclass 309 spouse (provisional) visa to come to Australia to live with her spouse, the applicant, Nicholas Ostin.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Dr Kovdeeva is not of good character because of her past and present general conduct, including entering into a marriage contrived purely for migration purposes less than one month after the expiry of a subclass 442 temporary (educational) visa, lodging an application for a review and making an application for ministerial intervention when she knew the relationship had ceased, remaining in Australia illegally and working unlawfully for over 12 months, and entering into a second marriage within two weeks of Ministerial intervention being denied on her first spouse visa application. The respondent therefore refused Dr Kovdeeva’s spouse visa application. This is the decision to be reviewed by the tribunal.
Background
3. The applicant, Nicholas Ostin, was born in Qiqihar, in the People’s Republic of China, on 7 June 1948 and is aged 56. He was granted Australian citizenship in May 1958. He is the owner/manager of Urethane Manufacturers of Australia, a company based in Guildford, New South Wales. On 17 September 1967, Mr Ostin married Tatiana Ostin, the relationship ending in divorce on 15 January 1990 (T p284). One child was born of the marriage, a daughter, Katherine Ostin, who is now aged 33. On 10 March 1992, Mr Ostin entered into a de facto relationship with Anna Gushina, the relationship ending on 15 April 1999 after her de facto spouse application was refused and she returned to Austria (T p292).
4. The visa applicant, Dr Tamara Kovdeeva, was born in Lesozavodsk, Russia, on 13 January 1954 and is aged 49. She is a medical practitioner with specialist qualifications in pediatrics and genetics and a citizen of Russia. On 14 June 1977, Dr Kovdeeva married Valery Kovdeev, an airforce pilot, the marriage ending in divorce on 12 November 1987. She has two children from that marriage, a son, Vladimir, who is aged 23 and a daughter, Loulia, who is aged 27. Dr Kovdeeva stated that met her second husband, Walter Rychtowski, in Kiev, Ukraine on 10 July 1994.
5. Mr Rychtowski was born at Lutsk, Ukraine on 29 July 1922 and was aged 72 when, on her account, he commenced his relationship with Dr Kovdeeva. On 15 July 1997, Dr Kovdeeva applied for and was granted a subclass 442 temporary (educational) visa, and on 6 August 1997, she arrived in Australia. On 8 March 1998, Dr Kovdeeva and Mr Rychtowski were married in a civil ceremony in Berala, New South Wales (T p63), and on 19 March 1998, Dr Kovdeeva lodged an application for a spouse (permanent residence) visa and an application for an associated bridging visa B with the then Department of Immigration and Ethnic Affairs (“DIEA”). A bridging visa B was granted on the same day valid until 19 June 1998 (T5 pp32, 86). She was also granted a bridging visa A valid until 30 March 1998. Dr Kovdeeva subsequently departed Australia on 30 March 1998. On 1 April 1998, Dr Kovdeeva’s subclass 442 temporary (educational) visa expired. On 18 June 1998, Dr Kovdeeva returned to Australia, and on 19 June 1998, her bridging visa B expired. She subsequently applied for and was granted a bridging visa A (subject to a 8102 no-work condition) valid from 19 June 1998 until the finalisation of her spouse visa application (T pp91-92).
6. During October and November 1998, Mr Rychtowski informed the then Department of Immigration that he and Dr Kovdeeva had separated and that Dr Kovdeeva had entered into their relationship and subsequent marriage for the sole purpose of seeking residence in Australia. On 14 January 1999, Dr Kovdeeva’s application for a spouse visa, based on her marriage to Mr Rychtowski, was refused (T38 pp138-154). In January 1999, information was received by DIMIA as to the character of Dr Kovdeeva from an unidentified informant. On 8 February 1999, Dr Kovdeeva lodged an application for a review of her spouse visa application with the Migration Review Tribunal (“MRT”), and was granted a bridging visa A pending the outcome of her appeal. On 14 February 2001, the MRT affirmed the decision on the grounds that the applicant was no longer the spouse of the nominator and that Mr Rychtowski no longer sponsored her (T p182). On 28 February 2001, Dr Kovdeeva applied for Ministerial intervention. On 21 March 2001, Dr Kovdeeva’s bridging visa A expired and she became an unlawful non-citizen in Australia.
7. On 15 July 2001, Dr Kovdeeva and Mr Ostin met at the Saint Sergius Nursing Home at Cabramatta, New South Wales (T p294), where Dr Kovdeeva was working and, on 11 August 2001, they began living together. On 11 October 2001, Dr Kovdeeva’s divorce from Mr Rychtowski became absolute (T p311).
8. On 15 May 2002, having been unlawful in Australia since 22 March 2001, Dr Kovdeeva applied for and was granted a bridging visa E, subject to a no-work condition (T63 p214-217), valid for the period 15 May 2002 to 13 August 2002 (T p215). On 16 May 2002, the President of the Russian Relief Association of New South Wales wrote a letter of support to DIMIA on behalf of Dr Kovdeeva, stating that she was a valued employee of that organisation, thereby confirming that she was working in contravention of her visa conditions (T64 p218). On 20 May 2002, Dr Kovdeeva applied for a bridging visa E allowing her to work (T p228), which was refused on 4 June 2002 (T70 p237). On 30 August 2002, Dr Kovdeeva was granted a further bridging visa E, subject to a no-work condition, valid until 30 October 2002 (T p258). On 13 November 2002, she was granted a further bridging visa E, subject to a no-work condition, valid until 27 November 2002 (T p268).
9. On 25 September 2002, Ministerial intervention was refused (T78 p260) and on 4 October 2002, Dr Kovdeeva and Mr Ostin were married at the All Saints of Russia Church, Croydon, New South Wales (T p309). On 25 November 2002, Dr Kovdeeva departed Australia.
10. On 29 November 2002, Dr Kovdeeva lodged an application for a subclass 309 spouse (provisional) visa at the Australian Embassy in Moscow (T82 p271). Dr Kovdeeva stated in her application that she had been given permission by the department to work in Australia from 19 June 1998 until 25 June 2002 (T p297). On 5 February 2003, Dr Kovdeeva was interviewed at the embassy in Moscow (T101). At that interview, she said that she originally arrived in Australia on a training visa, to undertake training as a geneticist, which was valid for six months. She stated that her first husband, Mr Rychtowski, only married her to remain in his large two bedroom Department of Housing accommodation and that she separated from him because of domestic violence perpetrated against her. She did not know that he had made allegations against her nor told the department that they had separated. She said that she continued with her MRT appeal, even though she was separated from Mr Rychtowski, because she thought that they would reconcile. She said that she was very angry with him because he had used her (T101 pp400-421).
11. Between February 2003 and July 2003, Mr Ostin made submissions to DIMIA that he and his wife needed to be together in their newly established relationship and that the stress and strain of their separation was disruptive to the running of his business (T104-T110). Between 10 August 2003 and 6 September 2003, Mr Ostin visited Dr Kovdeeva in Russia.
12. On 10 October 2003, a migration officer at the Australian Embassy in Moscow advised Dr Kovdeeva that she was considering refusing her spouse visa application on the grounds of her past and present general conduct including that she entered into a contrived marriage with Mr Rychtowski for the sole purpose of gaining permanent entry into Australia (T111 p434). On 21 November 2003, Dr Kovdeeva made submissions to the Australian Embassy, including that she was in a genuine marriage with Mr Rychtowski and that the breakdown of the marriage was not her fault and that he used her to retain the larger Department of Housing accommodation that he was otherwise not entitled to, and that she had lived with him as husband and wife until at least January 1999 and that Mr Rychtowski should not be trusted or believed (T114 pp441-443). She also lodged a character statement from the Russian Relief Association (T p447) and a letter from Mr Ostin dated 25 November 2003 stating that Mr Rychtowski was a “rogue” and had made contrived and unfounded claims against Dr Kovdeeva (T115 p449).
13. On 24 February 2004, having considered Dr Kovdeeva’s submissions, a delegate of the respondent decided to refuse the grant of a visa to Dr Kovdeeva on the grounds that she did not pass the character test because of her past and present general conduct, including that the applicant had entered into a contrived marriage with Mr Rychtowski for the purpose of gaining permanent entry into Australia and working in breach of her bridging visa conditions and having elected to exercise her discretion under s 501(1) of the Migration Act 1958 (“the Act”) to refuse the grant of a visa (T2). On 15 March 2004, Mr Ostin lodged an application for a review of this decision by this tribunal.
14. At the hearing, the applicant was represented by Nicholas Poynder, of counsel, and the respondent was represented by Ishan Muthalib, solicitor, of Blake Dawson Waldron, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (“the T Documents”), Volume 1, Volume 2 and a supplementary volume taken into evidence collectively as Exhibit R1, together with the evidence tendered by the parties at the hearing. For the applicant Mr Ostin gave oral evidence in person and Dr Kovdeeva gave evidence by telephone from Russia. For the respondent oral evidence was given in person by Mr Walter Rychtowski, Mr William Haddad, Mr Alex Sawyer and Mrs Olga Sawyer. The respondent also tendered a witness statement by Mr Valentine Shkolny.
Relevant Law and Policy
15. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
16. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
17. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
20. The issue for the Tribunal to determine in this case is, therefore, whether Dr Kovdeeva is not of good character having regard to her past and present general conduct so as to be precluded from the grant of subclass 309 spouse (provisional) visa. If the tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.
Evidence - introduction
18. Dr Kovdeeva gave evidence by telephone from Russia. A Russian interpreter was sworn in to assist her with the giving of her evidence.
19. The respondent adduced evidence in support of her contention that the visa applicant had shown contempt and disregard for the law by unlawfully overstaying her visa from 21 March 2001 to 15 May 2002, a period of 14 months, working unlawfully and by making certain false and misleading statements in certain applications for visas. The main allegation, however, was that she entered into a contrived marriage with Mr Walter Rychtowski in order to obtain a migration outcome.
20. This issue was crucial and was the subject of an irreconcilable clash of evidence between the parties. In particular, Dr Kovdeeva said that she had met Mr Rychtowski in Kiev, Ukraine, in July 1994 when he was on a concert tour of eastern Europe with a Ukrainian-Australian vocal ensemble. The relationship had developed further when the parties met again in Lvov a week later, and in February 1995 she again met with him for two days in Kiev. Subsequently they remained in contact by telephone and mail, and in 1996 he had invited her to Australia. Mr Rychtowski, on the other hand, was adamant that he did not meet Dr Kovdeeva for the first time until 17 January 1998 when he was introduced to her by a friend, Valentine Shkolny, at the Art Gallery of New South Wales. He had never met her outside Australia at all. He did visit Ukraine on a concert tour in July 1994 and early 1995, and returned to Lvov in late 1994, but says that the woman he met there and with whom he formed a relationship, and later married, was not Tamara Kovdeeva, but his third wife, a well-known Ukrainian opera singer named Nina Klymenko. He agreed to allow Dr Kovdeeva to substitute her own name for that of Nina Klymenko in relation to those incidents in order to strengthen her case for a spouse visa. He did so because she promised to marry him and he expected that she would live with him as his wife for at least the two years she would need to obtain permanent residence.
21. The conflict between these two versions of events cannot be explained as resulting from an honest mistake of fact. One account or the other must be an egregious fabrication. The stark opposition between the two accounts of the marriage had an effect on the course of cross-examination of Dr Kovdeeva and Mr Rychtowski. While the main contrary allegations were put to each of the them pursuant to the rule in Browne v Dunn (1894) 6 R 67, that was not done in relation to every detail of the opposing witness’s evidence. To do so would greatly have lengthened the hearing, which lasted seven days as it was. The T documents and the witness statements gave each side a comprehensive picture of the two different versions of the marriage, and the conflict between them was so radical that the witnesses’ general denials could be presumed to include matters of detail as well. Each of the two main witnesses was clearly on notice that almost the whole of that witness’s version was in contest.
Dr Kovdeeva’s evidence relating to the marriage
22. Dr Kovdeeva began her account of the relationship by relating how in July 1994 she was attending a conference of geneticists in Moscow. It was the practice of delegates to form small groups to visit other nearby regions after the conference was finished, thereby combining some recreational tourism with their professional activities. She joined a small party intending to visit Ukraine and was invited by another participant, Oksana Koudrienko, to stay with her in her apartment in Kiev for several days. On the second day of her stay, she and Oksana were walking around Kiev when they saw a poster advertising a concert presented by a Ukrainian-Australian group and a Ukrainian-Canadian group. They decided to go, and after the concert one of Oksana’s subordinates, who worked at the Palace of Culture, introduced them to one of the leading tenors from the Australian group. She described him as a charming, handsome man with greying hair who seemed aged between 50 and 55. They had a short conversation during which he said he was in a great hurry, so they exchanged telephone numbers. He was staying at the Hotel Bratislava, which she remembered as being located at 1 Malyshko Street, near the Darnytsia Street metro station. Her new acquaintance, who was Walter Rychtowski, telephoned her the next day at Oksana’s apartment. Dr Kovdeeva said that she was embarrassed at staying in the one-bedroom apartment where Oksana lived with her mother and daughter, so she decided to take a room at the Hotel Bratislava herself. For the next two or three days she met Mr Rychtowski daily for a couple of hours. (At her interview on 10 December 1998, she said that she spent a week with him in Kiev (T p113), but his tour dates showed that to be impossible). They would visit the markets and cafés and explore Ukrainian cuisine. He always bought flowers and was polite and gallant. They would walk along the riverbank talking, and sometimes he would sing. He claimed that he was mentioned in a history book about Ukrainians in Australia because of his dramatic tenor voice in the style of Pavarotti. Eventually he began to mention that he was alone and would quite like to marry, but was not interested in an Australian woman.
23. Mr Rychtowski then travelled to Lvov with his tour, mentioning before he left that he would be staying at the Trade Union Hotel and, as he knew that she was herself planning to spend a week in Lvov at the same time, offered to meet her there.
24. Dr Kovdeeva had planned to stay at a bed and breakfast lodging in Kathedralna Street of which she had been given the address. When making the reservation she had been required to pay two weeks’ rent in advance, but upon inspecting the premises after her arrival she decided she did not wish to stay there. Leaving her baggage there, she set off in search of another hotel and decided that she, too, would take a room at the Trade Union Hotel in Artem Street. There she contacted Mr Rychtowski through reception and met him at the hotel’s restaurant. Though she had not previously felt much special interest in him, the relationship developed and they became intimate during their stay in Lvov. During the day, she spent her time at the Mother and Child Institute and at the Medical Institute at Baki Street. After a week she departed and he continued on his tour, which was to take him to Poland next. Dr Kovdeeva mentioned that the names of both the hotel and the street had now changed; it was now the Hetman Hotel and was in Vladimir the Great Street.
25. At that time she had no intention of marrying, especially of marrying a foreigner. Opportunities for that had presented themselves in the past, through her participation in joint Russian-United States conferences and similar events. Her children were in Russia and she had no desire to leave the country.
26. During their time together in Kiev and Lvov, Mr Rychtowski had spent money quite freely on her and she had gained the impression that he was a wealthy man. He said he was a retired opera singer, and although that suggested that he might be living on a pension, it was her perception that opera singers do not retire. It was not until she came to Australia that she realised he was just “an ordinary pensioner”. Further, it was only when they were preparing the papers for the wedding in early 1998 that she learned he was actually 32 years her senior. Nevertheless, she said she did not regard that as a problem because he was young-looking and energetic.
27. Their next meeting after Lvov was in Kiev in February 1995. He had telephoned her in Vladivostok to say that he would be there, and as she had professional business in Moscow she was able to fly to Kiev for two days and one night to meet him. There she also met his best friends from Australia, Oksana Schewtschenko and Anatoly Mirosznyk, a composer.
28. Before the meeting in Kiev in early 1995, his contact with her had become less frequent, and during their time together in Kiev in 1995 his manner had been considerably more distant. He was vague about a permanent relationship and non- committal about marriage. Nevertheless they kept in touch by telephone and mail and in 1996 he invited Dr Kovdeeva to Australia. The opportunity to take up that invitation presented itself in 1997 when she was selected by Rotary International for a six month vocational scholarship in clinical genetics at the new Children’s Hospital at Westmead. She telephoned Mr Rychtowski to tell him about the scholarship, and he invited her to come and stay with him.
29. A Rotary Club party met Dr Kovdeeva at Sydney airport when she arrived on 6 August 1997. For the first two weeks she was billeted with a Russian-speaking Rotary Club family, Alex and Olga Sawyer (previously Soiushkin), who drove her around and introduced her to Rotarians and the staff of the Children’s Hospital. She then moved into residential accommodation for hospital staff adjoining the hospital in Darcy Road, between Westmead and Wentworthville railway stations. Mrs Sawyer lent her a television set, cutlery, bed linen and other household items.
30. After she had settled into her Westmead quarters, she telephoned Mr Rychtowski. He drove to the apartment and invited her to his place at Berala. Next they arranged to meet at the Art Gallery of New South Wales. Olga Sawyer drove her there. Subsequently they began to see more of each other, especially after the end of September 1997 when she had finished an English course that had been arranged for her. They met twice a week and on some weekends. He telephoned twice a day and in January 1998 proposed marriage. On 8 March 1998, in a quiet civil ceremony at home, they were married in the presence of eight or nine of her husband’s friends, including Oksana Schewtschenko and Anatoly Mirosznyk. After the wedding she moved her personal effects into her husband’s apartment in Berala. As the rent on her hospital apartment was paid until the end of March 1998, she went there every morning to check her telephone messages and change into her work clothes, which she had left there.
31. Dr Kovdeeva’s agreement with Rotary had stipulated that she would return to Russia at the end of her six months scholarship in order to pass on to her colleagues there what she had learned at Westmead Hospital. She also learned in March that her mother had been stricken by cardiac problems and her children were having difficulty coping with the situation. She therefore decided to return to Russia temporarily, departing on 30 March 1998. Before leaving she lodged, with Mr Rychtowski’s assistance, an application for a spouse visa.
32. While she was away they maintained contact through letters and telephone calls until she returned to Australia on 18 June 1998 and resumed living with Mr Rychtowski in Berala. Dr Kovdeeva was unable to work as a medical practitioner in Australia without years of extra study, but on 30 June 1998 she obtained employment as a casual assistant in nursing at Saint Sergius Nursing Home in Cabramatta, which was operated by the Russian Relief Association. It was at about that time, while preparing supporting documents for the spouse visa application, that she learned of Mr Rychtowski’s marriage to Nina Klymenko in Lvov on 26 November 1994, which ended in divorce on 24 March 1996. As Mr Rychtowski had married Nina after embarking on a relationship with Dr Kovdeeva in July 1994 and before their next meeting in February 1995, she felt she had been deceived by Mr Rychtowski. When she asked him about it, he described Nina as a slut and said that she had been involved in many casual associations after he had left Ukraine. He had withdrawn his sponsorship shortly before Nina was due to come to Australia.
33. Mr Rychtowski had adopted the practice of collecting Dr Kovdeeva from the nursing home on the nights when she was working the late shift. His car was an old one, however, which was continually breaking down and needing repairs. She did not like to travel home alone on public transport late at night, and when an elderly couple from Canley Vale whom she had met at the nursing home offered her a bed to use any time she was stranded at the nursing home at night, she accepted the offer and began staying with them regularly.
34. In September or October 1998, money problems also began to strain the matrimonial bonds. Mr Rychtowski’s pension had been substantially cut after he had informed Centrelink that his wife was working and repairs to the car absorbed a good deal of their discretionary income. On the October long weekend in 1998 there was a major argument over money and Dr Kovdeeva moved out of the Berala apartment with the intention of returning only when the car was fully repaired. Mr Rychtowski accused her of adulterous associations, but later retracted his remarks, and the parties resumed cohabitation in late October.
35. At the department’s spouse visa interview on 10 December 1998, Dr Kovdeeva learned that Mr Rychtowski had made a statement declaring that they had lived together for only three weeks and generally undermining her application. He had later contacted the department to withdraw that statement, but the interviewer nevertheless concluded that the marriage was not genuine and the spouse visa application was ultimately rejected.
36. When Dr Kovdeeva collected the spouse visa rejection letter from Mr Rychtowski at the Berala apartment on 18 January 1999, an argument ensued. Mr Rychtowski had delayed lodging with the Housing Department the required form reporting Dr Kovdeeva’s income, as that would have led to an increase in the rent payable. The delayed lodgement of this advice had been a factor that had contributed to the delegate’s conclusion that the spouses had lived together only for a short time. Dr Kovdeeva argued that his deceptive dealings with the Housing Department had led to the refusal of the visa and said she should have told the department of the true reason, that he was cheating the government. He thereupon became violently angry, striking her and threatening her with a large kitchen knife and saying that he would kill her if she ever mentioned his affairs to the department.
37. In her oral evidence, the prelude to the threat with the knife was described somewhat differently from the account in her written statement. At the hearing she said that she had referred to what she called his collaboration with the Germans during the occupation of Ukraine in World War II, and had said it was in his nature to betray people. “When I said that, he seized the knife and said that if I ever mentioned it to anyone he would kill me”, she said. Thereupon she reached for the telephone and pretended to call and talk to the police, although she did not at that time know the police number, and Mr Rychtowski ceased threatening and arguing. This altercation marked the practical end of the marriage, although there were some minor contacts after that. Before that confrontation she had hoped for reconciliation. She thought they would still be living together today if it had not occurred. In April 1999 Mr Rychtowksi had attempted a reconciliation, but because of what he had told the department she felt that she could no longer trust him.
38. With the help of the Cabramatta Community Centre she lodged an appeal to the Migration Review Tribunal (“MRT”) against the refusal of the spouse visa. By this time the relationship was over, but she pursued the appeal, she said, in order to clear her name. Despite that, the appeal could have succeeded if she had been able to establish that she had been the victim of domestic violence. She had not, however, reported the threat to the police or applied for an apprehended violence order, explaining that she felt embarrassed and ashamed over the episode. She had discussed it with her medical practitioner, Dr Lane, but he had died and his records were unavailable at the time of the MRT hearing. The lack of evidence of domestic violence proved fatal to the MRT review application, but Dr Kovdeeva made a favourable impression on the tribunal: “The visa applicant seemed to the Tribunal to be open and believable in her explanation of the circumstances surrounding this application and her references from professional colleagues back up the good impression she created. She is of good character and has strong medical and research capabilities. From her background, she appears to be a talented and hardworking person who has contributed to the Australian community during her time in this country” (T p188).
39. On paper, Dr Kovdeeva’s account of the relationship and marriage was credible, more so than Mr Rychtowski’s. In the course of her oral evidence, however, a number of difficulties emerged, some which should be mentioned at this stage.
40. First, the witness claimed to be unable to recall a number of incidents of a kind which one would normally expect a person to remember. In relation to the first time she met Mr Rychtowski in Kiev on or about 10 July 1994, she could not say whether the concert at which she saw him (during which he performed a solo), and after which she was introduced to him, was held in the afternoon or the evening. She explained that she did not know because artificial light was used. But she remembered seeing the poster advertising the concert on her walk around Kiev with Oksana Koudrienko (not to be confused with Oksana Schewtschenko), that the two of them decided to go, that after the concert she took another walk with Oksana and that there was a party in the evening at which champagne was served. Almost everyone remembers the circumstances of their first meeting with their future spouse, even if they do not recall the exact date, and in fact the stories of these meetings are a common topic of polite conversation. Mr Poynder noted that Mr Rychtowski did not remember whether the concert was a matinée or evening performance either, but that does not necessarily help Dr Kovdeeva’s position. If he could not recall that detail, he could not pass it on to her when, as his evidence relates below, he was supplying her with the raw materials for her story. That could explain why she could not commit herself on that point.
41. Nor could she could recall meeting Valentine Shkolny at Parramatta shopping centre, although by his account they had a friendly conversation lasting about ten minutes and arranged to meet again. She could not recall whether she had told Olga Sawyer that she was planning to meet Mr Rychtowski at the art gallery, even though Olga drove her there. The meeting was only the second time she had seen Mr Rychtowski since coming to Australia and from her viewpoint it was the main purpose of the excursion. To refrain from telling her generous hostess Olga about it, when she was taking the trouble of driving Dr Kovdeeva from Westmead to the Domain (which adjoins the gallery), would have been rather artificial and manipulative behaviour.
42. Another memory lapse in relation to her friend Olga related to their chance meeting at Saint Sergius after Dr Kovdeeva had returned from Russia in 1998. Believing that Dr Kovdeeva was still in Russia passing on the benefit of her scholarship period at Westmead, Olga had asked her what she was doing there, and had received the reply that she had been sponsored by some people in Brisbane and was in Sydney to work for six months. When that conversation was put to her in cross-examination, Dr Kovdeeva at first said that she could not remember it, though was not able to deny it, but then said the conversation did happen but with a “different scenario”: “I said I was working, but there was no mention of Brisbane or of my return to Russia”.
43. Next, she was asked about paragraph 12 in Mr Rychtowski’s statement (Exhibit R4): “I told her from the beginning that I would help her stay in Australia but that if she met someone who is younger that she wanted to be with that she should be honest with me and then we can end our marriage. I told her I would not mind as long as she was honest with me”. It is hard to imagine how any spouse could fail to remember whether or not such a statement was made, but so she claimed.
44. Again, she was asked about the statement in her first spouse visa application in which she stated that she had lived with Mr Rychtowski at 6/8 Kathedralna Street, Lvov, from July 1994 to August 1994 (T p46). Her own evidence, of course, had been that she had never stayed at that address herself, let alone with Mr Rychtowski. Yet she claimed not to recall what she thought that statement meant at the time she made it.
45. Quite apart from that alleged memory lapse, the false statement about living together at Kathedralna Street was in itself significant on the issue of character. Some inaccuracies in form-filling by applicants who are not lawyers might not mean much, but a completely fictional episode of cohabitation for a period of up to two months is more telling.
46. Secondly, there were oddities and outright contradictions in her evidence about the hotels in which she stayed in Ukraine when she met Mr Rychtowski. In her evidence she related how she had moved into the Hotel Bratislava at 1 Malyshko Street, Kiev. In Lvov she had taken a room at the Trade Union Hotel in Artem Street, then explained that it was now called the Hetman Hotel and that the street had been renamed Vladimir the Great Street. When asked why she remembered the precise address of the Hotel Bratislava, she replied that she had done some preparation in advance of giving evidence and independently remembered some names; she also liked Kiev. The following day she clarified that the name of the Trade Union Hotel in Lvov was actually Slavutich or a compound of the two names, but that she could not really recall the name and had tried to check it. Subsequently, by way of further clarification, she volunteered that she had found a receipt for the Hotel Karpaty in Lvov. This document, in a fragile condition, was essentially a registration slip, which hotels in Ukraine are required to place in the passport of any foreign guest. Still later she said that she had found the slip in the pocket of a house dress but it was damaged because it had passed through the washer. She said that everyone called the Karpaty Hotel the Trade Union Hotel and that the slip she had retrieved from the pocket bore the impression of a round stamp with the words Trade Union (in Ukrainian of course) and Karpaty. Her counsel very properly urged her to courier the document to him as soon as possible, whatever its condition, but she demurred, saying it was very frail and was in fact sticking to her hand.
47. An internet search showed that there is an Artem Street in Kiev and another in Donetsk. There is none in Lvov, but that is consistent with the witness’s evidence that the street name had been changed. There is a Slavutich Hotel in Ukraine, but it is in Kiev, not Lvov. The only Hetman Hotel of which any mention can be found is in Warsaw, Poland. There is a Vladimir the Great (Vladimir Veliky) Street in Lvov, but no mention was found of a hotel in that street. The Hotel Karpaty in Lvov is situated in Kleparivska Street, not in Valadimir Veliky Street.
48. One would not expect a person who travels relatively frequently to remember accurate details of every hotel name and of the street in which it stands. Nevertheless, this seemed a rather baffling assortment of names, especially coming from a witness who said that she had prepared for giving her evidence, could remember some names and was particularly fond of Kiev. The applicant offered no explanation for it despite being invited to do so.
49. Of greater significance, however, was the witness’s suddenly changed story about the Lvov hotel registration receipt that allegedly passed through the washer in the pocket of a house dress. Having announced the rediscovery of the elusive receipt and subsequently having described the round stamp on it bearing “Trade Union” and “Karpaty Hotel”, while being conspicuously reluctant to make the document available to the tribunal, the witness in re-examination the following day retracted what she had said. She explained that the telephone connection on the previous day had been bad, that she had found only a few “crumbled” bits of paper on which she could make out only the letters “KA”. Seeing those letters had brought back to her mind the name Karpaty. She could not claim that that piece of paper was what remained of the registration document, which indeed she now said she had not found, and averred that the visible letters could be part of any similar word, such as “cardiology” (in Russian). She said that she had some time before located the original passport inserts in an old file and had put them in a safe place but had been unable to find them and so could not identify the fragments as having formed part of the original documents. Mr Poynder argued that the story could be true and that she may only have been trying to be helpful, but I cannot agree. The only reasonable conclusion from this disorderly retreat was that the story of the registration slip was a fabrication.
50. Thirdly, there was a discrepancy in her evidence about the date of her visit to the art gallery with Olga Sawyer at which she said she had arranged to meet Mr Rychtowski. Dr Kovdeeva said that she had first contacted Mr Rychtowski by telephone after settling into the Westmead apartment. “He came to the apartment and invited me to his place at Berala. Next we arranged to meet at the Art Gallery of New South Wales. Olga Soushkin [sic] [Sawyer] drove me to the art gallery” (Exhibit A3 para 28). At the hearing she was asked if she went to the art gallery during the Sydney Festival and attended the Festival symphony concert in the Domain immediately after visiting the gallery. She admitted planning to go to the concert in conjuction with the visit to the gallery. When asked why she did not mention the Domain concert, she replied that she was asked about Walter, not about the concert, which she attended with Olga. But there is another possible reason. The Sydney Festival is always held in January. Dr Kovdeeva’s account, however, effectively placed the visit in late August 1997. She agreed when asked if it was in “about August”. If the visit in fact took place during the Sydney Festival in January 1998, not in August 1997, it would seem rather odd that there had been no contact between Dr Kovdeeva and Mr Rychtowski for over four months, when they were to marry only a couple of months later. That is a more probable reason why the witness did not mention the concert in her original account. Mr Poynder suggested there may have been two visits to the art gallery, not one, but there is no evidence to support that hypothesis and Dr Kovdeeva herself has never suggested that she visited the art gallery more than once.
51. Fourthly, there are a number of undisputed facts which, especially when taken together, are not easy to reconcile with the existence of a genuine marriage. For example, Dr Kovdeeva has no photographs taken at the wedding. She said they did use one roll of film, but she took it back to Russia with her, did not have it processed and does not know where it is (T p6). She did not receive a wedding ring and explained that they could not afford rings. Instead, Walter gave her a gold necklace and bracelet as wedding gifts (T pp6, 114). She did not invite Alex and Olga Sawyer to her wedding, despite the extensive friendly contacts between them in the course of her Rotary scholarship. In addition to the assistance mentioned earlier, Olga had invited Dr Kovdeeva to social functions, arranged for her to visit the Blue Mountains with the Sawyers’ daughter and her boyfriend, escorted her around Parramatta shopping centre and showed her how to use public transport. Through the Sawyers she attended lunches, parties and barbecues, and even their daughter’s wedding. Alex Sawyer’s Rotary club paid for her to attend a conference in Brisbane. Even more startling is that when the Sawyers and other Rotarians drove her to the airport when she departed for Russia on 30 March 1998, Dr Kovdeeva did not even tell Olga that she had married Mr Rychtowski only three weeks previously. Mr Poynder suggested that she did not inform Olga because she felt she had let Rotary down as she would now be returning to Australia to rejoin her new husband and not staying in Russia to help sick children. But Dr Kovdeeva herself did not explain the incident in that way. When asked if she thought she should have told Olga and the Rotarians about her marriage, she replied that she did not recall and that she did not wish to mix Rotary activities with her personal life − an improbable explanation that conflicts with Olga Sawyer’s unchallenged evidence outlined below. She reiterated a number of times that it was none of the Sawyers’ business, it was personal and she did not wish to mix Rotary matters with her personal life.
52. On the other hand, Dr Kovdeeva’s account of the relationship and its history was corroborated by Mr Rychtowski’s earlier statements in support of her spouse visa application as well as by statutory declarations sworn by his two best friends, Oksana Schewtschenko and Anatoly Mirosznyk (T pp64-67). Ms Schewtschenko’s declaration dated 17 March 1998 included this paragraph: “I first met the applicant Tamara four years ago in the Ukraine while Walter had arrived there on tour with the ‘Ivasiuk Ensemble’ choir”. Mr Mirosznyk’s declaration of the same date said, “I first met applicant Tamara Kovdeeva while [sic] my visit in Kiev, Ukraine in 1995. There she was introduced to me by Walter Rychtowski”.
Mr Rychtowski’s evidence relating to the marriage
53. It is now necessary to consider Mr Rychtowski’s account of the events.
54. Mr Rychtowski was born at Lutsk, Ukraine, in 1922. Before World War I, Ukraine had been part of the Russian empire, but after the war it was incorporated into Poland until 1939. Between 1941 and 1944 it was under German occupation and from 1944 reverted to Russian control until the fall of the Soviet Union. Mr Rychtowski came to Australia in 1949, becoming a citizen in 1957. As was the case with so many male immigrants at the time, his first employment in Australia was on a motor vehicle assembly line, at the Holden Pagewood plant. After a year at Holden he began working as a panel-beater and for a time conducted his own panel-beating business at Carramar until the rent on the premises rose to a level he could no longer afford. His last position was with a Toyota dealership in the city of Sydney. During this period he became well-known in the Ukrainian community as a singer and for a time performed with the National Opera.
55. Mr Rychtowski has been married four times. His third marriage was to Nina Klymenko, a well-known Ukrainian diva, who he met in Kiev, Ukraine in 1994. Ms Klymenko had a son, who at that time was serving a term of imprisonment. She wanted to bring him to Australia, but friends told Mr Rychtowski that if he were to include the son in his visa application they would both be refused because of the son’s criminal conviction. Ms Klymenko was granted a visa, but when she found out that her son would not be receiving one, she refused to come to Australia. The marriage was dissolved in Ukraine on 24 March 1996.
56. Mr Rychtowski did not know whether the Trade Union Hotel was at that time, or subsequently, referred to as the Hotel Karpaty. He had never heard of a Hotel Karpaty at all. The only organization named Karpaty of which he was aware was the Karpaty Credit Union in Lidcombe. Nina Klymenko did stay with him one night at the Trade Union Hotel, but on that occasion they spent all their time talking about singing. Mr Rychtowski returned to Ukraine in November 1994 and remained there until February 1995, living at Nina’s apartment in Lvov. His passport shows that he registered with the police as living at her address. Much of the time was spent in making arrangements for Nina’s spouse visa. They made one trip to Kiev together during that period.
57. Mr Rychtowski stated adamantly and repeatedly that he did not meet Dr Kovdeeva in Kiev in July 1994 at all, or at any other time outside Australia, that he did not invite her to Australia and that their first meeting was at the Art Gallery of New South Wales in Sydney on 17 January 1998.
58. They actually met through a friend of Mr Rychtowski’s, Valentine Shkolny, who had met Dr Kovdeeva at Parramatta shopping centre. He invited Mr Rychtowski to join him on a visit to the art gallery to meet a Russian woman he had met. When he arrived at the gallery at the appointed time he found Mr Shkolny, who was with two women, one of whom was Dr Kovdeeva.
59. On being introduced to Dr Kovdeeva he had a short conversation with her during which she expressed a desire to stay in Australia and asked him if he could help her. He gave her his telephone number, and shortly afterwards the two women left. He remained at the concert in the Domain for about a half an hour before returning home. Dr Kovdeeva phoned him the following day. He picked her up from Westmead and drove her to his apartment where he asked her how he could help her to remain in Australia. She said the only way he could help her was by marrying her.
60. He was lonely at the time and was very happy to help this attractive young woman. He began seeing her regularly and the relationship became intimate. Ultimately, however, sexual relations occurred on a total of only five occasions, all of them before the marriage. After that, she rejected him.
61. Apparently both parties thought a spouse visa application would have greater chances of success if the marriage were shown to have longer antecedents than merely the seven weeks between 17 January 1998 and the wedding on 8 March 1998. At all events, Mr Rychtowski told Dr Kovdeeva all about his meeting with Nina Klymenko in Ukraine in 1994 and their relationship and subsequent marriage. The plan was that she would use incidents from that history in her own application, substituting her own name for Nina’s. She wrote down all the details she could, even before the marriage, but after moving in following the wedding she had ready access to all his papers about his history with Nina Klymenko, which he left on a table. He showed her his itinerary for the Ukraine concert tour (Exhibit R5). This part of the story might explain the odd collection of hotel and street names Dr Kovdeeva mentioned in her oral evidence, which sounded more like names she picked up from a collection of papers than names forming part of her own experience. It would also explain why she included the name of a hotel that was in Poland, not Ukraine; the choir travelled from Lvov to Poland, it will be recalled.
62. Mr Rychtowski did not help her to concoct her story, but did arrange for his friends Oksana Schewtschenko and Anatoly Mirosznyk to swear statutory declarations saying they had been introduced to Tamara Kovdeeva in Kiev, when in fact they had not been in Ukraine at the time. While they were willing to do it to help him, they expressed concern about it, but Mr Rychtowski told them not to worry and that everything would be all right. They simply wrote what he asked them to write. “I make mistake”, he said, but of course it was not a mistake, it was a criminal conspiracy. For that reason Mr Rychtowski gave his evidence subject to an indemnity against prosecution.
63. At the time, he said, he was not using his brains. He was besotted with Tamara Kovdeeva and would have done anything she asked. But if he had known what she had in mind as regards the marriage, he would not have gone ahead with it. Mr Rychtowski did not intend to enter into a marriage that was a mere formality and a complete sham. He had explained to her that the marriage would need to last two years for her to obtain permanent residence. During that time he hoped to have the benefit of her society in a more or less normal marital setting. He knew that the marriage was going to be a short one, but not as short as it turned out to be.
64. The spouse visa application was lodged on 19 March 1998, and on 30 March Dr Kovdeeva left for Russia, returning to Australia in June 1998. While she was away they kept in contact by telephone. She asked him for the money to pay for the flight back in Australia.
65. Before they were married and before the spouse visa application was lodged, Mr Rychtowski said that Dr Kovdeeva was very good to him. After the application was lodged and she had returned from Russia, however, she changed a great deal. She lived with him at Berala for a short period, but during that time came home very late. The relationship was one only of sharing meals a few times a week, and if she stayed overnight they slept in separate rooms. She was seldom at home on Fridays, Saturdays or Sundays and then started disappearing for weeks without informing him of her whereabouts. He expressed dissatisfaction with that state of affairs, as her husband, but she told him she was staying with relatives and refused to give him their address or telephone number.
66. After Dr Kovdeeva’s return from Russia, they lived together full-time for a total of only about three weeks. Dr Kovdeeva was unable to practise medicine in Australia, but Mr Rychtowski found her the position at Saint Sergius Nursing Home through one of the senior staff, Valentina Semriy. Saint Sergius had some residential accommodation for nurses and Dr Kovdeeva moved into an apartment there as soon as she could. If she had remained living with Mr Rychtowski, the Housing Department would have required her to pay $200 per week in rent, whereas at the nurses’ home she could stay for $40 per week. Some time after that he received a telephone call from Valentina Semriy who said to him, “Walter, be careful she has a lover, she is using you”. He tried to contact Dr Kovdeeva at the nurses’ quarters but was told that his wife spent hardly any time there, but had left her boyfriend’s address and telephone number so that she could be contacted in an emergency. The details given related to the man known as Hussein, of whom more later.
67. As he had informed Centrelink about his marriage, Dr Kovdeeva’s income was taken into account and his pension was substantially reduced as a result. “She paid me $250 to keep me happy and to compensate for the loss,” he said. That was the only amount she ever paid him. In her view he wanted to extricate himself from the marriage in order to recover his full pension. Mr Rychtowski denies that his car problems had any thing to do with Dr Kovdeeva’s decision to move out. The car had indeed been off the road because he had driven it without water and blown the cylinder head gasket, but it had been repaired within four or five days.
68. Mr Rychtowski thought that the marriage was genuine, in the sense described above, until the major argument in early October 1998. In the course of it she told him that she no longer wanted to live with him, that she had already found a boyfriend who was going to help her to stay in Australia and that she did not need an old man like him. He denied that she had accused of him collaborating with the Germans during the war and strongly denied that he had ever done so. He was 17 when the occupation began and spent his whole time working at a theatre in Lutsk. It was a public theatre and he had never participated in any performances for the Germans, or at least not specifically for them. He had never fraternised with them: “I hate Germans!”, he said.
69. Dr Kovdeeva had also said that she knew a man at the Rotary Club who had promised to look after her and arrange for somewhere she could live without problems, and that if Mr Rychtowski did anything to prevent her from obtaining Australian residence, she would (falsely) claim that she had paid him $15,000 to marry her. She had also said “If you do anything to stop me from getting residence I will make sure you disappear forever”. He had taken the threat seriously because, from the way she had talked, he had thought she might have worked with the KGB, and she had many contacts. He reported the threat to a Constable Dietz at Bankstown police and changed the lock on his door, thereby further infuriating her (Supp T p14). For his part he had never threatened Dr Kovdeeva with a knife or in any other way, or used violence against her. He denied ever referring to Nina as a slut: “She was a real lady, a famous opera singer”.
70. Until about that time, he said, he had tried to help her but did not know what he was dealing with. When he discovered that she was spreading falsehoods about him at work, he changed his mind about her and concluded that their marriage was false. He reported to the department that Dr Kovdeeva was not living with him and that their relationship ever since her return from Russia in 1998, had been one of sharing meals a few times a week and nothing more. She had not been living with him and when she did stay overnight they slept in separate rooms. He did not want to withdraw his support for her application because he was afraid of her (T sup p14). He denied, however, that it was he who had made the detailed anonymous telephone complaint recorded in Exhibit A13.
71. In November 1998 he received an invitation from the department to attend with his wife for an interview on 10 December 1998 in connexion with the spouse visa application. When he contacted her to inform her about the interview, she indicated that she regretted moving out and would like to return and live with him again. She assured him that her decision had nothing to do with the impending interview. She returned to live at the apartment in Berala at the end of November 1998.
72. At the interview Mr Rychtowski retracted his statements about their relationship and said they had arisen from feelings of jealousy. He said he did not think she married him so that she could stay in Australia or that she was using him. Shortly after the interview, however, Dr Kovdeeva moved out again, leading him to believe that she had returned only for the purposes of the interview.
73. In January 1999, a letter from the department addressed to her arrived at his address. He contacted Dr Kovdeeva, who came to his apartment and collected it. It was the letter dated 14 January 1999 informing her that her application for a visa had been rejected. After reading it she said to him sarcastically, “Thank you for your support” and departed. After that time, whatever feelings he had for her faded, partly because she was still spreading falsehoods about him. He stands strongly by his statement that she used him in an attempt to gain permanent residence in Australia and that everything about the marriage was false. Nevertheless, he says he harbours no ill-feeling towards her and is not trying to prevent her from coming to Australia, though if he were the department he would refuse her a visa.
74. After her final departure on receiving the refusal letter on 18 January 1999, she was living with William Haddad, Mr Rychtowski said. After that she was with a Yugoslav who later committed suicide, and then had another relationship.
75. While Mr Rychtowski’s evidence did not on its face display the stark symptoms of fabrication that were evident in Dr Kovdeeva’s evidence, it was not without difficulties of its own. Before examining those, it may be appropriate to mention that Mr Rychtowski is suffering from terminal cancer and medical prognosis gives him only one or two months to live. In murder or manslaughter cases there is an exception to the hearsay rule for declarations made by a person under a “settled hopeless expectation of death” at the time the statement was made, the rationale being that no one would wish to die with a lie on his lips. By analogy with that rationale, it could be argued that the evidence of Mr Rychtowski, who professes to be a member of the Russian Orthodox Church, should carry greater weight by reason of his terminal medical condition. I do not, however, approach his evidence in that way and will endeavour to evaluate it on the same basis as that of the other witnesses.
76. Perhaps because of his age and sickness, Mr Rychtowski was at times a rather awkward witness. He tended to become agitated and sometimes did not listen properly to the question that was being put to him. He became confused at times, for example referring to Nina Klymenko when he obviously meant Tamara Kovdeeva. He was impatient with questions on matters of detail. There were some differences between his evidence and that of another witness for the respondent, William Haddad, in relation to when he first met Mr Haddad, whether he made a particular telephone call to him, whether he copied some particulars that Mr Haddad had shown him and the circumstances of his meeting with Mr Haddad at a club restaurant at Mount Pritchard. The errors could, of course, be on Mr Haddad’s side, but Mr Poynder drew attention to those discrepancies and they could be material. In the end the discrepancies were either satisfactorily explained or proved immaterial.
77. Mr Rychtowski was adamant throughout that he did not meet Dr Kovdeeva in Ukraine and that his first encounter with her was at the art gallery on 17 January 1998. Mr Poynder argued that the witness repeated that statement like a mantra in a way suggesting recent invention. While I would not agree with that characterisation, the comment does highlight a further difficulty with Mr Rychtowski’s evidence, the fact that it is squarely inconsistent with his own earlier statements to the department when he was supporting Dr Kovdeeva’s spouse visa application. He has offered an explanation for the conflict, but some questions about his reliability as a witness must remain. His testimony would have to be treated with caution unless supported by other evidence.
Evidence supporting Mr Rychtowski’s account
78. The second witness for the respondent was William Haddad, a Manager of Industries with the New South Wales Department of Corrective Services. He was born in Jordan of Christian parents and won a scholarship to study in the then Soviet Union. He lived for seven years in Russia and Ukraine, earning a degree in civil engineering from the Zaparogia Institute of Technology. As a result of that chapter in his life he speaks fluent Russian.
79. Mr Haddad said he first met Dr Kovdeeva in late January 1998 outside the dental section of Westmead Hospital. Hearing her Russian accent, he started a conversation with her and drove her home to the nurses’ quarters. Their first outing together was to the aquarium at Darling Harbour, and after that they began seeing each other regularly. There was a very good rapport between them and they never argued. Three or four of his friends saw them together, and he visited his friend Peter with Tamara several times. On one occasion he took her to lunch with his parents.
80. Often they would go to the beach, especially Cronulla, Maroubra and Palm Beach. They also visited a pool, where Dr Kovdeeva noticed there were some Rotarians swimming. She made it clear to him then (and possibly also on other occasions) that she did not want anyone from Rotary to see her with him, because she had told them she was married, although she said the marriage now only existed on paper. He was under the impression that her husband was in Russia, but later thought that she might have been referring to Walter Rychtowski. The relationship lasted for eight to nine months in 1998 and they remained in touch by telephone while she was away in Russia from April to June 1998. She also wrote to him once during that time, “a very nice letter”, he said.
81. Mr Haddad said that he had developed deep feelings for Dr Kovdeeva, who was helping him through a difficult time and assisting with his children. Tensions began to develop in August and September, however, because she began “disappearing” frequently, explaining that she was staying with friends from Rotary. In October he asked after her at the nurses’ quarters at Saint Sergius. Valentina Semriy said that she was seeing a man named Hussein.
82. In the course of one of his visits to Saint Sergius, Mr Haddad saw Dr Kovdeeva being called for by a man in a car, the registration number of which he noted: UON 302. He later came to learn the man was named Hussein and about the same time found out that Dr Kovdeeva was married to Walter Rychtowski.
83. Finally, during a conversation in Chipping Norton Park, he confronted Dr Kovdeeva over her disappearances and the affair with Hussein, and quoted the registration number of the car. At first she denied everything, but then said that her relationship with Mr Haddad was not getting anywhere and that she had received offers of marriage from men in Rotary and from Russians. She said that her marriage to Mr Rychtowski was a marriage of convenience so that she could remain in Australia. Mr Haddad was adamant that she had used the exact words “marriage of convenience”. Although deeply fond of Dr Kovdeeva, Mr Haddad did not want to be pressured and felt that he needed time before committing to marriage. Dr Kovdeeva then said that, given that their relationship was not getting anywhere, she had taken up with another man, who she referred to as Hussein, from the hospital.
84. The man referred to as Hussein was Dr Mohammad Hussein Nouri-Sorkhabi, who was a research assistant at the University of Sydney and also worked at Westmead Hospital. On 17 June 2000, he made a statutory declaration (T pp170-171) in support of Dr Kovdeeva’s application for review before the MRT. In it he said that he had met her in September 1997 at his workplace and described their professional contact. He also said that he had helped Dr Kovdeeva initially with English and familiarity with Australian society. The declaration concluded with this sentence: “My friendship with Dr Kovdeeva was and is a respectful one as she is a respectful lady”. The declaration thus does not admit to a closer relationship with Dr Kovdeeva, but neither does it deny it.
85. Dr Kovdeeva apologised to Mr Haddad for deceiving him over the affair with Hussein and asked him to meet her so that they could discuss their future together. He called for her at Saint Sergius and they drove to the Mount Pritchard club where they had a frank talk in which he said, among other things, that he respected her decision to leave. She said, “Let’s try one more time” and they decided to spend a weekend together at Hawk’s Nest. Afterwards, however, he still felt wronged by the way she had not told him the truth and felt he could not continue with the association. He cancelled the reservation at Hawk’s Nest.
86. Some time later she telephoned to tell him that her spouse visa application had been rejected and asked to meet him at Harris Park train station. There she showed him the letter and asked him what he thought about it. He replied, “What did you expect? You’re not living with him”. She said she would appeal and asked Mr Haddad to help. He took her to see a registered migration agent named Mr Lappa, who advised her that as there was no cohabitation, an appeal was likely to fail. He heard no more from her after that and lost contact with the people in that area when he moved from Toongabbie in 1999.
87. In the latter part of 1998, Mr Rychtowski telephoned Mr Haddad to ask him why he was having an affair with his wife and said he wanted to fight him. Mr Haddad told him that he had indeed been seeing Dr Kovdeeva but that during his relationship with her he did not know she was married to him. Mr Haddad said it was a short conversation, and unpleasant for both of them. He said to Mr Rychtowski, “I was misled like you”, and the conversation ended abruptly. He next saw Mr Rychtowski at the nurses’ quarters at Saint Sergius. He does not recall that they were introduced but thought there were at least three people there, including himself, Valentina Semriy and a “Chinese girl”. After a time they were joined by Dr Kovdeeva who spoke normally with Mr Rychtowski and Mr Haddad. He saw Mr Rychtowski once more, at the Mount Pritchard club in 1999, after his last contact with Dr Kovdeeva, and spoke briefly with him. It was a short conversation consisting of greetings and pleasantries only, and after that Mr Haddad did not see Mr Rychtowski again.
88. There is a discrepancy between Mr Haddad’s evidence and that of Mr Rychtowski concerning the use, if any, that Mr Haddad made of the registration number of the car in which Dr Kovdeeva was collected from Saint Sergius nursing home. Mr Haddad said that he confronted Dr Kovdeeva with the number, which he gave as UON 302, during the discussion at which she admitted to her relationship with Hussein. He said that he did not search the number plate through the Motor Registry, as by then private individuals were no longer able to do so, and that he did not give the number to anyone else. Mr Rychtowski, on the other hand, said that he copied down the number and the particulars of the registered owner from something Mr Haddad had written. He then incorporated those details in his undated statement to the department (T pp163-165) in connection with her MRT appeal. In that document the registration number is given as VON 322 and the registered owner is stated as Mr Nori-Sorkhabi of 17/64 Fullagar Road, Wentworthville. When the details are read in context, however, it seems possible that they were part of the particulars given to Mr Rychtowski when he enquired about his wife at the Saint Sergius nursing home and was told that she hardly spent any time there but left her boyfriend’s address and phone number, by which she could be contacted in case of emergency. There followed a telephone number and the Fullagar Road address.
89. Mr Rychtowski also denies making the telephone call to Mr Haddad described above and gives a different account of the later meeting in the restaurant in the Mount Pritchard club. He also thought that he had not met Mr Haddad until the marriage was over and that he had contacted Mr Haddad after Dr Kovdeeva had left him. That contact, could, of course, have been the telephone call that Mr Haddad mentioned earlier. The reference to contacting him after Dr Kovdeeva had left could also be a reference either to the time she moved out in October 1998 or to the final breakup in January 1999. These points are not substantial, and given Mr Rychtowski’s tendency to become confused when giving his oral evidence, Mr Haddad’s version of the events is more likely to be correct.
90. Mr Haddad insisted that he and Dr Kovdeeva had “made peace” after their final parting in October 1998, that he harbours no ill-will towards her and did not make the anonymous telephone report to the department about her (Exhibit A13). He appreciated the good times they had shared and especially the help she had given him with his children and with dealing with his personal difficulties at a stressful time in his life. He had not wanted to become involved in these proceedings in the first place, especially once he realised that his evidence might prevent two people from being together. But he resented it when someone denied something in order to gain an advantage, and said that if she was denying their relationship, “it must be for a reason”.
91. Mr Poynder argued that Mr Haddad could not be accepted as a witness of truth and that he was “the only liar in this case”. Mr Poynder’s primary position, that there had been no relationship, raised the question of what possible motive Mr Haddad could have for giving his evidence in these proceedings if he had never known Dr Kovdeeva. The applicant’s alternative position was that if there had been a relationship, it was during 1999, after the marriage had broken up, and not in 1998. But the 1998 timeline is congruent with the other evidence in the case. More importantly, it must be remembered that Dr Kovdeeva denies ever having known Mr Haddad at all, whether in 1998 or at any other time. She said any assertion to the contrary by Mr Haddad must be “a joke”. There is no basis for rejecting Mr Haddad’s evidence.
92. The respondent also called as a witness Mrs Olga Sawyer. Because she and her husband Alex Sawyer are of Russian background, they were asked by Rotary International to help Dr Kovdeeva, a Rotary exchange scholar, to settle in Australia. She first met Dr Kovdeeva on or about 6 August 1997 when she, her husband and a number of other Rotarians met Dr Kovdeeva at Sydney airport. When they were driving from the airport to the Sawyers’ house, Dr Kovdeeva asked questions which Mrs Sawyer thought were unusual because they did not relate to the exchange program and the type of work she would be doing but to how easy or difficult it was for Russians to come and live in Australia, how easy it was to get a job and how to obtain citizenship. “I thought it was strange to jump into these questions in the car from the airport”, she said in her oral evidence. Dr Kovdeeva had also said that she was married, that her husband was named Vladimir and that she had two children, one of whom was at university and the other finishing school. She said Vladimir had been a senior air force pilot but had left the service in 1991.
93. Dr Kovdeeva stayed with the Sawyers for between 10 days and a fortnight, and from then on Mrs Sawyer’s contact with her was on a regular basis, at least once a fortnight. She also met Dr Kovdeeva at Rotary meetings, at social events and also private events. She had many activities with Dr Kovdeeva, including showing her how to use public transport and to find her way around the city. She took her on her first trip to Parramatta shopping centre and to Westmead Hospital so that she could meet the people she would be working with. She also drove her to the Russian cemetery and on 19 January 1998 took her to a lunch at Cabramatta as a guest for the celebration of the 12 days of Christmas.
94. After staying with the Sawyers, she moved into the accommodation for visiting doctors not far from the hospital, and Mrs Sawyer helped her to settle in, lending her a small television set, bed linen and other household items. After that, she started her training and Rotary invited her to do guest speaking and to visit Rotary meetings, which she did.
95. Mrs Sawyer also took her to Carlingford for her English course, invited her to family parties, picnics and barbecues and arranged for them to take a trip to the Blue Mountains with her daughter and her boyfriend. Mrs Sawyer said she was closer to Dr Kovdeeva than other Rotarians or other people because she and her husband spoke Russian. She considered Dr Kovdeeva a friend.
96. On Saturday 19 January 1998, Mr and Mrs Sawyer took Dr Kovdeeva to the Symphony in the Domain as part of the Sydney Festival. The Sawyers attend these concerts every year, so they invited Dr Kovdeeva to join them on that occasion and she said she would like to come. Their usual practice is that before the concert begins Mr Sawyer likes to read a book and Mrs Sawyer visits the Art Gallery of New South Wales before it closes. Mrs Sawyer explained these arrangements to Dr Kovdeeva. Some time before the day of the concert, Mrs Sawyer had a conversation in which Dr Kovdeeva said, “That concert we’re going to, I met some- one at the Parramatta supermarket who has been here for only a few years from Moscow and he’s an artist and he also mentioned the concert and he might be going”. In her oral evidence, Mrs Sawyer made it clear that Dr Kovdeeva did not mention Mr Rychtowski or any other person and said that she was going to meet only Mr Shkolny.
97. While walking around the art gallery, Mrs Sawyer and Dr Kovdeeva came across Mr Shkolny, whereupon Dr Kovdeeva said, “This is the man I met the other day at the supermarket”, and introduced her to Mr Shkolny, who in turn introduced them to his friend Mr Walter Rychtowski. Mrs Sawyer had not met Mr Rychtowski before, but remembered his singing performances. The four of them then started talking and Dr Kovdeeva asked Mr Rychtowski about where he was from and how long he had been in Australia. Mrs Sawyer had the impression from their conversation and manner towards each other that they had not met before and that she was enquiring about his life. The man she said she knew, and to whom she introduced Mrs Sawyer, was Mr Shkolny, not Mr Rychtowski.
98. As the group started walking around the Art Gallery, Mr Shkolny talked about art, the kinds of brush strokes he uses, and similar matters. The four of them started strolling around the gallery, Mrs Sawyer conversing with Mr Shkolny and Dr Kovdeeva with Mr Rychtowski. They kept running into each other and then separating from their respective walks around the collection. As the gallery was closing, Mrs Sawyer gained the impression that Dr Kovdeeva wanted her to invite the men to join them, but Mrs Sawyer did not want to because she was bored with Mr Shkolny and his discussions about art.
99. The Sawyers and many other Rotarians went to the airport on 30 March 1998 to farewell Dr Kovdeeva. She did not tell Mrs Sawyer, and as far as Mrs Sawyer is aware she did not tell any of the other Rotarians, that she had married Mr Rychtowski earlier that month, or that she intended to return to Australia. At some time during the middle of her stay in Australia she did mention to Mrs Sawyer that her “husband” in Russia had suffered a heart attack. Mrs Sawyer asked her how she felt about that and she replied that she was not really concerned, that she was not very happy with him in any case and that she might leave him. This and her earlier description of her marriage to Valery Kovdeev contradicts Dr Kovdeeva’s assertion that she never discussed her personal life with Olga Sawyer.
100. About six weeks after Dr Kovdeeva left for Russia, Mrs Sawyer telephoned her in Vladivostok to remind her that she had to write a report for Rotary about her experiences in Sydney. Eventually Dr Kovdeeva sent a short letter stating that she was back in Russia and working at the hospital.
101. In early 1999, when Mrs Sawyer was visiting her mother at Saint Sergius she saw a woman resembling Dr Kovdeeva enter the dining room where Mrs Sawyer and her mother were, pushing a wheelchair. Mrs Sawyer looked at the woman and she suddenly left the room. At the end of her visit she looked for the woman and, being unable to find her, asked the receptionist if Tamara Kovdeeva was working there. The receptionist said yes, which surprised Mrs Sawyer because she thought Dr Kovdeeva was in Russia.
102. At about that time she also received a telephone call from Mr Rychtowski, who said, “I am Walter, Tamara’s husband”. Mrs Sawyer thought it was Dr Kovdeeva’s husband from Russia, but he then said, “Remember, we met at the art gallery?” He then told Mrs Sawyer that their marriage was over and that Dr Kovdeeva was living at the Saint Sergius staff accommodation.
103. On her next visit to Saint Sergius, Mrs Sawyer encountered Dr Kovdeeva and asked her, “What are you doing here?” Dr Kovdeeva replied, “I have been sponsored by people in Brisbane and I’m just here to work for six months to make some money and go back”. By this time Mrs Sawyer already knew that she had been living in Australia because Mr Rychtowski had sponsored her here as his wife. Mrs Sawyer stated that Dr Kovdeeva never told her that she had met Mr Rychtowski in Ukraine before their meeting in the Art Gallery of New South Wales. She believed that Dr Kovdeeva and Mr Rychtowski met for the first time at the art gallery on or about 17 January 1998 when Mr Shkolny introduced them.
104. I have paraphrased Mrs Sawyer’s evidence at some length, because she knew Dr Kovdeeva well and her evidence bore directly on the key question of where and when Mr Rychtowski first met Dr Kovdeeva. Mrs Sawyer was clearly an honest and sincere witness who had no conceivable motive for being anything other than truthful, and the applicant did not suggest otherwise.
105. Mrs Sawyer’s evidence was supported by that of her husband, Alex Sawyer, who explained that he had changed his surname from Soiushkin to Sawyer when he came to Australia because he had been told that it would make life easier in this country. He has been involved with Rotary International since 1978 and was governor of Rotary International District 9680 between 1996 and 1997. He travelled to Russia in 1995 as part of a Rotary tour to see what Rotary could do to assist the people of eastern Russia. He was involved with Rotary District 9680’s exchange program set up for the purpose, among others, of helping children suffering from cancer caused by nuclear energy. The aim was to select a Russian doctor to come to Australia and learn from Australian medical people, and take the knowledge and skills acquired back to Russia to help those children with cancer, especially in relation to genetics. District 9680 sponsored Dr Kovdeeva as part of that program.
106. Mr Sawyer’s evidence about the meeting and association with Dr Kovdeeva is similar to Mrs Olga Sawyer’s evidence. He recalls that on the drive home from the airport on the 6 August 1997, Dr Kovdeeva said, “How can I get work here?” and he replied “You can’t work here as a doctor”. She also enquired about the employment situation in Australia.
107. He also recalls that they took Dr Kovdeeva to functions, to Taronga Zoo and to family lunches and barbecues. Carlingford Rotary club voluntarily gave her about $100 a week spending money and also paid for her rental accommodation and other expenses. The club also arranged to send her to Brisbane for a conference. Mr Sawyer confirms that he and his wife attend the Sydney Festival Symphony in the Domain every January, normally trying to arrive between 3.30pm and 4.00pm. When they arrive Mr Sawyer likes to sit and read a book while his wife visits the art gallery. On 17 January 1998 he accompanied his wife and Dr Kovdeeva to the concert, and as usual stayed in the park to read while Mrs Sawyer and Dr Kovdeeva visited the art gallery. As he was reading in the Domain, he did not witness the meeting with Mr Rychtowski in the gallery.
108. Mrs Olga Sawyer had told him about the meeting with Dr Kovdeeva at Saint Sergius in late 1998 or early 1999. At that time Mr Sawyer himself had encountered Dr Kovdeeva at Saint Sergius. She tried to elude him but he cornered her and gave her his opinion on her conduct. He said, among other things, “Please don’t tell me lies. Rotary spent thousands of dollars on you to help the children in eastern Russia, not for you to look after elderly Russians in Australia.” Mr Sawyer also said that he was unaware that Dr Kovdeeva had married Walter Rychtowski in Australia before her departure on 30 March 1998.
109. Mr Sawyer also seemed a completely truthful, sincere and reliable witness, and the applicant did not suggest the contrary.
110. The respondent tendered a written witness statement signed by Valentine Shkolny, who was born in Ukraine in 1926 and came to Australia in 1993. He is now a pensioner, was a professional journalist in Moscow and also worked as an artist and photographer in Australia.
111. He was by himself when he first met Dr Kovdeeva at a Parramatta shopping centre. He was buying some goods and while talking with the sales assistant using Russian words, he was approached by a woman who told him she was Russian. They talked for about ten minutes. The woman told him her name and said she was a doctor, adding that she was pleased to meet some one who is Russian. She said, “You look like an interesting person and I would like to know you better”. She said she was from Vladivostok and that she liked Australia very much. Mr Shkolny thought she seemed like an interesting and attractive woman, and her conversation and behaviour towards him suggested to him that she was single. He gave her his telephone number and they left the shopping centre separately, having decided to keep in touch. He recalls that during the conversation he said words to the effect of “I know a Ukrainian person I can introduce you to”. They also arranged to meet again, and he suggested they meet at the Art Gallery of New South Wales. He did not give Dr Kovdeeva Mr Rychtowski’s telephone number.
112. After this meeting he telephoned Mr Rychtowski and told him he had met an attractive Russian woman at a shopping centre and proposed that he should introduce Mr Rychtowski to her and mentioned that they were going to rendezvous at the art gallery.
113. A week or ten days after meeting Dr Kovdeeva at Parramatta, he went to the art gallery with Mr Rychtowski and again met Dr Kovdeeva, who was in the company of a woman friend. Mr Shkolny introduced Mr Rychtowski to Dr Kovdeeva and to her friend. Then Mr Rychtowski and Dr Kovdeeva started conversing and walked separately, while Mr Shkolny began looking at paintings with Dr Kovdeeva’s friend (Mrs Sawyer).
114. He thought the encounter at the art gallery took place a few months before Dr Kovdeeva and Mr Rychtowski’s marriage and that it was in the same year as their marriage. He also believes that he introduced them, they did not know each other previously, in view of the way they behaved and responded to each other after he had introduced them. He could not, however, “give a 100% assurance that they have not [sic] met before” (Exhibit R10).
115. The applicant did not require Mr Shkolny for cross-examination and the statement was admitted into evidence (Exhibit R10). Mr Poynder highlighted the witness’s reluctance to give a “100% assurance” that the parties had never met before, but it would be difficult ever to be certain about a circumstance of that nature unless one or both parties expressly said that they had never met. Besides, it would be a remarkable coincidence if the Ukrainian Mr Shkolny wanted Dr Kovdeeva to meet happened to be the very man who, she said, had invited her to Australia and with whom she was intimately involved.
116. The remainder of his evidence, including his meeting with Dr Kovdeeva at Parramatta and the arrangements he made to bring them together, coupled with the very absence of any discernible expression of recognition between two people who were supposedly lovers, strongly points to that being their first meeting. Either that, or they were engaged in a joint pretence aimed at concealing their earlier association, conduct which in itself would call for an explanation.
117. Mr Ostin did not know Dr Kovdeeva at the time of her marriage to Mr Rychtowski and is unable to give any first-hand evidence about that period. He strongly declares that he does not believe the allegations that have been made against her, as one might expect, and adds that he would not have married her if he thought she was of bad character. He wrote a letter to the department dated 25 November 2003 to that effect (T pp449-450). Enclosed with the letter was a statutory declaration (T p451) stating that when he was at the office of Mr Laurie Ferguson MHR seeking to have an aiffidavit of service witnessed, the witnessing justice of the peace, Julie Bouloux, described Mr Rychtowski as a “rogue” who had “a terrible reputation in the community”. That assessment conflicts with the opinions expressed by Mr Ferguson himself in several letters supporting Mr Rychtowski and stating that he has known him for several years (Exhibit R3). Mr Ferguson is a prominent member of federal parliament and I have no doubt that those letters express his genuine opinion based on his own experience. The conflict between his view and that of Ms Bouloux remains unresolved and is not crucial.
118. Comparing the evidence of the two principal witnesses on their own, one would not automatically prefer Mr Rychtowski’s version of events over Dr Kovdeeva’s. That would be so even allowing for the difficulties in her evidence mentioned above. Sometimes witnesses will foolishly attempt to “improve” a generally true account by embellishing it with false details in order to conceal gaps or anomalies. But Mr Rychtowski’s testimony is corroborated by the evidence of the Sawyers, Mr Haddad and Mr Shkolny. Their recollections were clear and largely unambiguous. In the case of the Sawyers and Mr Shkolny, their veracity and accuracy of recollection were not challenged.
119. On the other hand, the apparent corroboration of Dr Kovdeeva’s account in the statutory declarations of Oksana Schewtschenko and Anatoly Miroszyk evaporated in the light of the evidence that they had not been in Ukraine at the relevant time and that they had been induced to make knowingly false statements in order to help Mr Rychtowski with Dr Kovdeeva’s spouse visa application. Thus there is no evidence to support the proposition that Dr Kovdeeva was ever in Ukraine. The preponderance of probabilities overwhelmingly favours the conclusion that the parties did not meet in Ukraine in 1994 but met for the first time in Sydney on or about 17 January 1998, and that they conspired to falsify the history of the relationship in order to conceal the fact that they entered into a marriage less than two months after they first met, a step that could not, in this case, be attributed to youthful impetuousness and might be taken to indicate a contrived marriage. In fact she suggested marriage the day after their first meeting.
120. The evidence also shows that Mr Rychtowski knew that Dr Kovdeeva was marrying him in order to provide a basis for seeking permanent residence. He agreed to the marriage with that knowledge, because although he expected the marriage to be a short one, he thought he would have the pleasure of Dr Kovdeeva’s company for at least the two years that she would need to live with him in order to obtain permanent residence. As Mr Muthalib pointed out, at his age that was a great prospect. Dr Kovdeeva did not, however, honour her side of the bargain, not only in that she moved out of the matrimonial home within a few weeks, but also because, even before the marriage, she became intimately involved with at least one other man, and soon after probably two men, who were much younger than Mr Rychtowski and who could also offer her the prospect of permanent residence. The facts point strongly to the conclusion that Dr Kovdeeva had no intention of having any form of genuine marriage with Mr Rychtowski. He was right when he eventually concluded that “Everything about our marriage was false”. Dr Kovdeeva herself described it to Mr Haddad as a marriage of convenience, and so it was.
121. Dr Kovdeeva’s conduct in relation to the Rotary exchange scholarship tends to reinforce those conclusions. Rotary scholarships are highly prized in academic circles, partly because the generous hospitality of Rotarians in the host country enables the scholar to gain a real understanding of another country and its people. For many researchers these scholarships have been a life-changing experience. But Dr Kovdeeva did not accept the scholarship in the spirit in which it was given. The Rotarians, especially the Carlingford branch, contributed their own money to enable Dr Kovdeeva, a qualified geneticist, to help the children of eastern Russian who had developed cancer, possibly through exposure to nuclear radiation. She made no attempt to do so, however, remaining in Russia only long enough to attend to family matters and arrange to return to Australia as soon as possible. She made no serious attempt to honour her obligation to write a report for Rotary on her work in Australia (T p130), even after Olga Sawyer’s telephone reminder. I do not treat her conduct towards Rotary and the sick children of eastern Russia as evidence relevant in itself to the character test, but I do consider that it reinforces my findings in relation to the marriage. It shows Dr Kovdeeva to be a cynical and calculating individual who does not hesitate to exploit well-meaning or unsuspecting people for her own purposes. Such a person is more likely to have induced Mr Rychtowski to contract a marriage of convenience for migration purposes by means of promises to him that she had no intention of keeping.
122. Mr Poynder contended that the respondent’s failure to adduce evidence from Hussein, Oksana Schewtschenko, Anatoly Mirosznyk and Valentina Semriy gave rise to adverse inferences under the rule in Jones v Dunkel (1959) 101 CLR 298. But as long as she produces acceptable evidence relevant to the issue, evidence which does not require elucidation, the respondent is not bound to call as a witness everyone with any knowledge of the facts. Cumulative evidence is not required. Besides, as the statutory declarations of Oksana Schewtschenko and Anatoly Mirosznyk ostensibly supported Dr Kovdeeva’s version, Jones v Dunkel might just as easily be invoked against the applicant, who might also have been expected to call them. Hussein and Valentina Semriy could also have been expected to be called by either party. And the applicant apparently made no attempt to locate Oksana Koudrienko, who on Dr Kovdeeva’s version would have been a key witness, though one would think that she could be found through the Russian medical genetics fraternity. I do not think, on balance, that Jones v Dunkel has any significant effect either way in this case.
123. Mr Poynder submitted that Dr Kovdeeva had stuck to her story that hers was a genuine marriage that failed because she was away from home, because of shift work, car breakdowns and the general deterioration of the relationship, and the tribunal should accept her evidence. That could be an available conclusion if one viewed her evidence on its own, or even when set against Mr Rychtowski’s on its own. But it becomes untenable once one considers all the evidence in the case. If the respondent bears a Briginshaw v Briginshaw (1938) 60 CLR 336 burden of proving a contrived marriage, as Mr Poynder contended, she has discharged it.
Evidence in relation to other alleged breaches
124. The respondent adduced evidence of three other breaches of migration law, all of which are interrelated. The first was that she remained unlawfully in Australia between the expiration of her bridging visa B on 21 March 2001 and the grant of a bridging visa E on 15 May 2002, a period of approximately 14 months. Secondly, she worked in Australia without lawful permission during that period, and thirdly, that she made a false and misleading declarations in the present spouse visa application dated 29 November 2002 when she stated that she had been given written permission to work by the department from 19 June 1998 to 25 June 2002.
125. The applicant did not dispute that Dr Kovdeeva’s stay in Australia during the relevant 14 months was unlawful or that she worked at Saint Sergius Nursing Home during that time. He pointed out, however, that the delegate did not treat that issue as part of the basis for her decision, but as merely forming part of her assessment about Dr Kovdeeva’s motivation for staying in Australia and her overall honesty with the department. The delegate noted that the applicant’s bridging visa A, which expired on 21 March 2001, did allow her to work, but that she was not on a valid visa until 15 May 2002 when she received a bridging visa E with a no-work condition attached to it.
126. After the bridging visa A expired, Dr Kovdeeva applied for ministerial review under s 351 and although, as the delegate noted (T p9), she was entitled to a bridging visa E because of her outstanding s 351 request, she did not apply for one. Mr Poynder said that was because her then migration agent failed to advise her that she needed to apply for a bridging visa A, as s 351 requests do not carry the automatic grant of such a visa while the Minister is considering the request. Indeed, in her oral evidence she said she still did not think she had done anything wrong during that period and pointed out that when she received the department’s letter of 13 May 2002 informing her that she was now unlawfully in Australia (T p475), she took leave from Saint Sergius (almost) immediately and applied for permission to work. When it became apparent that permission would not be forthcoming, her employment at Saint Sergius terminated. She stressed that she would never intentionally have remained or worked unlawfully and that her conduct after 13 May 2002 illustrated that.
127. That explanation is quite plausible. While Dr Kovdeeva may well have given herself the benefit of any possible doubt about her legal status, she had clearly set her heart on remaining in Australia. She seems too intelligent and sophisticated to commit an intentional breach, so obvious and easily proved, that might jeopardise her achieving that goal. Besides, by complying with the department’s express directions she could build credibility for herself. That would help her to convince a decision-maker that her story about the establishment of her relationship with Mr Rychtowski in Ukraine in 1994, which would be considerably harder to disprove, was true.
128. Mr Poynder also contended that the incorrect answer about her having had permission to work in her spouse visa application (T p297) could not have been intended to deceive because the department was obviously fully aware of the conditions of all visas granted to Dr Kovdeeva. Even during the hearing she remained of the view that she had permission to work during the relevant period, though that was incorrect. This statement had not been raised by the delegate who decided to reject her spouse visa application and was not important.
129. I can accept Mr Poynder’s submission on that point, but more serious is the misstatement from her first spouse visa application to the effect that she had lived for up to two months with Walter Rychtowski in Kathedralna Street, Lvov (T p46). As was pointed out above, that could not be the result of an innocent mistake. It is another instance of Dr Kovdeeva’s making a materially false statement of fact when she knew it would be difficult for the department to discover the truth.
130. The applicant’s case was directed to refuting the respondent’s contention that Dr Kovdeeva had engaged in activities indicating contempt or disregard for the law when she committed the alleged breaches of the Migration Act, rather than marshalling a body of evidence to show that she was of good character. There is, however, evidence to that effect. Mr Ostin describes her as an honest and loving person and argues that, “I would not have married Tamara and jointly bought our house if I suspected that she entered into a contrived marriage to Mr Rychtowski. I love her but I’m not suicidal” (T p458). The Migration Review Tribunal thought she was of good character, a talented hard-working person who has contributed to the Australian community during her time in this country.
131. The MRT did not have before it the evidence available to this tribunal, but several supportive references about her work at Saint Sergius, signed by Mr VG Gounko, the President of the Russian Relief Association, attest to her valuable work at that institution. On 4 November 1998, Mr Gounko wrote, “Her manner is pleasant and friendly. She is capable of handling problems and pressure of work whilest monitoring drive and enthusiasm. Tamara works efficiently, is fast and accurate in her work and always achieves good results. She is a [sic] honest, capable person, reliable and has pleasant personality which would bright [sic] up any organisation. She has demonstrated a high level of personal commitment to maintain a high standard of resident care. Her contribution is evident [sic] to provide an atmosphere where mutual respect exists between staff and residents” (T p174). On 20 February 2001, he wrote that Ms Tamara Kovdeeva is a valued employee. “… Her continuous involvement in the Diversional therapy constantly improve [sic] the quality of life of our residents. ... Ms Tamara Kovdeeva has been working hard while living in Australia and during that time has contributed to the continuous improvement of the aged care and to the Australian economy” (T p191). Mr Gounko made similar comments in a reference dated 16 May 2002 (T p218) and in a telephone call to the department on 15 August 2002 (T p244). Although trained as a paediatrician and geneticist, Dr Kovdeeva evidently devoted herself to the care of frail and sometimes fractious aged people in a dedicated, energetic and understanding manner.
Evidence relevant to the exercise of the discretion
132. That positive evidence of good character, as well as the negative evidence concerning breaches of migration law, is relevant to the application of the discretionary factors prioritised in Direction No 21.
133. In addition, evidence of possible hardship to Mr Ostin must also be taken into account for that purpose.
134. Mr Ostin (formerly Ostasevich), was born in 1948 in China. His parents migrated from Russia to China in 1922 because of the 1917 revolution. In 1955 the Soviet Union was pressuring Russian expatriates to return to Russia and Mr Ostin’s father returned to the USSR thinking that his wife and children would follow him. But his mother feared religious persecution because her grandfather had been a Russian Orthodox priest, so they remained in China until 1958, when they migrated to Australia. His father wrote letters expressing his desire to be reunited with the family, but he could not come to Australia because he was not allowed to leave the USSR. In desperation Mr Ostin’s mother decided that she would leave Australia and rejoin his father in Russia, but the Soviet Embassy refused her a visa. His father was heartbroken and committed suicide two years later.
135. Mr Ostin is the founder and sole director of Urethane Manufacturers of Australia Pty Limited, which supplies spare parts to the mining industry throughout Australia and south-east Asia. The parts include pumps and screens made from urethane, which is more durable than rubber. The business requires a great deal of Mr Ostin’s time and energy, and everything relies on him. The time demands and the anxiety resulting from the visa application and review process have affected his ability to concentrate on the business. He says the effects have been augmented by departmental administrative problems, including the Moscow embassy’s loss of the file for a period of weeks, the sending of a letter to the wrong address and cancelled interviews. On one occasion he was driving home from work one evening when the recollection of his father’s forced separation and his suicide from depression overwhelmed him, to the extent that he broke down, could not see the road ahead and had a serious accident resulting in a head injury and broken ribs. He had also been treated for anxiety, stress and depression and has suffered cardiac episodes.
136. Mr Ostin says he could not possibly drop his business to move to Russia to live with Tamara. The business has taken 25 years to build up and he would have to close it and dismiss his 15 staff if he had to leave Australia. He can barely read and write in Russian. He has 35 relatives in Australia. Most of the uncles and cousins he has in Russia he has never seen or does not remember.
137. Mr Ostin has previously had one marriage and one extended de facto relationship. The evidence indicates that he genuinely wants this marriage to succeed and the respondent has not suggested otherwise. He is an innocent party in this case. Though one cannot dismiss the possibility that Dr Kovdeeva is using Mr Ostin as she has habitually used others, I think she also has a genuine commitment to this marriage. Given her determined efforts here to remain in Australia by any available means, it is of course likely that the prospect of living with her devoted husband at their house on the water at Mooney Mooney is more attractive than her present situation of sharing an apartment with relatives in Vladivostok. Nevertheless, I think she has a genuine desire to make this marriage a success.
Application of the Law and Findings of Fact
138. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(b) and (c)(ii), Dr Kovdeeva passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
139. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Dr Kovdeeva does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
140. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
141. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
142. In relation to the issue of whether Dr Kovdeeva’s marriage to Mr Rychtowski was contrived for migration purposes, it was not disputed that the legal nature of a valid marriage is a union of a man and a woman to the exclusion of all others voluntarily entered into for life. As was made clear in Dhillon and Another v Minister forImmigration, Local Government and Ethnic Affairs (1989) 86 ALR 651, it is not required to have a romantic element before it may be regarded as a binding marriage, and the fact that it breaks down is only one factor to be considered in evaluating genuineness. In a later case involving the same applicant’s later marriage, the court held that the second marriage was not valid because Dhillon never intended to remain permanently with his Australian wife : Dhillon v Minister forImmigration, Local Government and Ethnic Affairs (1994) 48 FCR 107.
143. In the present case it is apparent that Dr Kovdeeva never intended to remain permanently with Mr Rychtowski. From her viewpoint it was purely a convenient way of achieving permanent residence. Mr Rychtowski, for his part, expected that she would stay with him for at least the two years she would need to obtain permanent residence, and would have been happy if she had stayed longer. Nevertheless, he knew from the outset that the marriage was contrived for migration purposes and that she would probably leave when she found a younger man – he just wanted her to tell him honestly when she had, rather than deceive him.
144. Before making a decision on whether Dr Kovdeeva passes the character test, it is appropriate to set out my findings of fact on that issue. I find that Dr Kovdeeva has been involved in activities indicating contempt or disregard for the law by entering into a contrived marriage with Walter Rychtowski in order to obtain a migration outcome, by remaining unlawfully in Australia from 21 March 2001 to 15 May 2003, a period of approximately 14 months, that while an unlawful non-citizen she worked in Australia without lawful permission do so, that she made a false and misleading declaration in her spouse visa application dated 29 November 2002, that she had been given permission to work from 19 June 1998 to 25 June 2002 and that she made a false statement in her spouse visa application in relation to her marriage to Mr Rychtowski claiming that she had lived with him for up to two months in Lvov in 1994. I therefore find she does not pass the character test.
145. Having decided that Dr Kovdeeva does not pass the character test by reason of her immigration misconduct, I must then decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to Dr Kovdeeva. In exercising this discretion, the Tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
146. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
147. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
148. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”.
149. As regards the first primary consideration, the seriousness and nature of the conduct, it is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. Contracting a sham marriage with Mr Rychtowski on its own, and even more so when coupled with the false statements to the department associated with it, must be regarded as very serious misconduct. While there may be extenuating circumstances in relation to her overstay, the unlawful work and the incorrect statement in relation to permission to work, the same cannot be said of the marriage. Indeed the deception involved in that transaction was aggravated by her brazen attempt to maintain that elaborate falsehood throughout her dealings with the department and throughout the course of a eight-day hearing in this tribunal. That behaviour negates any possible argument about rehabilitation and also suggests a risk of recidivism, if not in relation to migration matters, then in connexion with other future dealings with governments or private bodies.
150. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. Sham marriages are a continuing problem in the administration of Australian migration law, and indeed the experience is similar in all developed countries that allow spouse migration. Refusal of a visa in this case is likely to be noticed in the Australian Russian community and possibly more widely. Certainly, granting a visa to someone shown to have attempted such a monstrous deceit would send entirely the wrong message to anyone contemplating similar misconduct.
151. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
152. In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it. While most people would feel real sympathy for Mr Ostin’s predicament, Dr Kovdeeva’s migration law violations have been so gross that community expectations would distinctly favour the refusal of a visa in this case.
153. The third primary consideration, the best interests of the child, is not relevant to this matter.
154. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
155. It was not disputed that Dr Kovdeeva’s marriage to Mr Ostin is genuine. Mr Ostin is a successful, self-made business man who has contributed significantly to Australian industry and the economy. A few weeks after he met Dr Kovdeeva in July 2001, Mr Ostin became aware of her marriage to Mr Rychtowski and the refusal of the spouse visa in relation to it. As she related it, it was simply a case of a failed marriage to a potentially violent man who had misled her about his career, background and other matters. As far as Mr Ostin understood, she was not hiding anything from him and he did not believe the allegations made against her in the tribunal appeal. He has invested a great deal of time, money and energy in arranging for her divorce and her spouse visa, and the stress associated with the process has taken a toll on his health and on his ability to devote his attention to this business.
156. From his viewpoint moving to Russia to be with her is not a possibility, and he has not discussed the results of a possible refusal of a visa. He has visited her three times in Russia and they have also spent time together outside Russia on four or five other occasions. No doubt he could make similar arrangements in the future, but he would not regard that as satisfactory. Mr Ostin is plainly a deserving applicant and considerations relating to his welfare and wishes favour the grant of a visa to Dr Kovdeeva. Nevertheless, and despite Mr Poynder’s assiduously prepared and forcefully presented case for her, the gravity of her contraventions, and her obdurate persistence in the worst of them, mean that the primary factors of community protection and expectations outweigh the other considerations, including the marriage to Mr Ostin. If she had frankly admitted at the outset that the Rychtowski marriage was a sham there might have been more scope for the operation of discretionary factors in her favour, though I cannot speculate on whether it would have made a decisive difference. But her persistence in an egregious and demonstrated attempt to deceive makes that impossible.
157. The decision under review should be affirmed.
I certify that the 157 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 14, 15, 16, 17, 18, 21, 22 and 24 February 2005
Date of Decision 8 April 2005
Representative for the Applicant Mr N Poynder, CounselRepresentative for the Respondent Mr I Muthalib, Blake Dawson Waldron Solicitors
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Refusal of Visa
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Character Test
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Judicial Review
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Risk of Recidivism
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Community Protection
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